This article was originally published at The Diplomat on 5 May 2016. Available here.

A week after having released 199 political prisoners, on April 17 the Government of Myanmar released 83 additional prisoners. Among those released were student activists involved in peaceful protests against the National Education Law and Naw Ohn Hla, a land rights activist involved in demonstrations against the Chinese-backed Letpadaung Mine.

Htin Lin Oo, a writer and former National League for Democracy information officer, was also among those released. In June 2015 he had been sentenced to two years of hard labor for violating section 295(a) of Myanmar’s Penal Code, which prohibits the deliberate and malicious outraging religious feelings. The charge emerged from a speech in which he had accused several prominent Buddhist organizations of extreme nationalism.

He was mostly referencing Myanmar’s notorious monk, U Wirathu, who has been accused of hate speech and incitement of violence against Muslims by international observers numerous times since anti-Rohingya violence erupted in 2012.

Another victim of abusive 295(a) prosecution, New Zealander Philip Blackwood was released in January. Blackwood, along with two colleagues, had been sentenced in March 2015 to two and a half years of hard labor over a psychedelic image of the Buddha wearing headphones they had used as a promotion for their bar. The court appeared to have caved to pressure from Ma Ba Tha, Wirathu’s organization, and their excessive convictions arguably contributed to the ongoing privileging of Buddhism above other religions.

Both cases are emblematic of the susceptibility of the Penal Code to manipulation that furthers discrimination against ethnic and religious minorities.

Speaking on April 19, a spokesperson for the Office of the High Commissioner for Human Rights commended Myanmar’s new President U Htin Kyaw’s commitment to preventing “those who act legally for political causes or for their own conscience from being imprisoned.” Such commitments are positive but they also highlight the need for critical review of laws that do not conform with international standards. Because section 295(a) of the Penal Code has been used to further religious discrimination and to imprison critics of nationalist hate speech, it requires critical examination if Myanmar is to avoid institutionalizing discriminatory practices in this sensitive time of transition.

Historical Irony

There’s an unmistakable irony in that section 295(a) came about in response to the need to prohibit incitement against Muslim minorities by Hindu nationalists, yet it has become instrumentalized in contemporary Myanmar to insulate Buddhist nationalists against prosecution for incitement against Muslim minorities.

Myanmar, like other former British South Asian colonies, bases its criminal law on the Penal Code of 1860. Section 295(a) was added through legislative amendment in 1927.

In 1924, an unattributed satirical pamphlet written in Urdu titled The Promiscuous Prophet had gone on sale in bookstores in Lahore, in present day Pakistan. Responding to a copy he had been sent, Gandhi wrote, “I have asked myself what the motive possibly could be in writing or printing such a book except to inflame passions.” Sure enough, protests within the local Muslim community mounted against the publisher, who was ultimately acquitted; the judge ruled that the Penal Code did not explicitly criminalize this manner of religious hate speech. Around the same time a second case dealing with a publication that ridiculed the Prophet Mohammed was brought before the Lahore High Court amid growing demands for an amendment to the Penal Code that would be more sensitive to protecting religious minorities from hate speech.

In 1927 the Government convened a legislative assembly mandated with this task.

Historian Neeti Nair explains that the legislative assembly was concerned with ensuring maximum personal liberty of expression. The assembly was in agreement that in order for speech to be prohibited, the insult to religion or outrage to religious feelings must have been the sole deliberate and conscious intention. In this the lawmakers were concerned not to punish good-faith social or historical commentary or limit attempts to challenge religious adherents in order to encourage reform. For these reasons the final text aimed to explicitly prohibit only the “deliberate and malicious intention of outraging the religious feelings of any class of persons.”

N.C. Kelkar, one of the commissioners, was less convinced that this language would be sufficient to prevent abuse. He proposed including two explanations that would have explicitly noted what is not to be considered an offense under 295(a). This included stating facts and criticism of individuals, tenets, or observances of any religion with a view to promoting social or religious reform. Kelkar was defeated in this proposal and the amendment entered into force on September 22, 1927 without exception.

Kelkar was surprisingly prescient in insisting on further clarifications. The problem in contemporary Myanmar is that the lack of precise language has allowed for the object and purpose of this section of the Penal Code to be disregarded under pressure from Buddhist nationalist forces at the expense of religious minorities and those who may have spoken in their defense.

How the court has interpreted this section of the Penal Code is inconsistent with both Burmese law and international human rights standards.

Inconsistencies with Burmese Law

The Constitution, in Article 34, recognizes the right of every citizen to the freedom of religion. As such the State should have an obligation to protect this right but the lack of transparency and failure to adhere to the law, and bias in favor of Buddhist plaintiffs, implies the courts are not upholding the equal protection of the freedom of religion.

The Constitution is actually somewhat ambiguous on this. Article 361 sets out that Myanmar recognizes the special position of Buddhism as the faith professed by the majority of the country while merely recognizing in Article 362 that Christianity, Islam, Hinduism and Animism were religions existing in the country at the time the Constitution took effect. From recognizing the special position of one to merely acknowledging the existence of others, it is not difficult to see where courts may be pressured to read bias into the law by politicized Buddhist organizations.

That such groups are as much political as religious should, however, raise a major Constitutional concern. Article 364 forbids the abuse of religion for political purposes. In light of Ma Ba Tha’s role in drafting the recent so-called Protection of Race and Religion laws and issuance of threats preceding the 2015 election it is clearly politicized.

While there are limited similarities with Ma Ba Tha claiming religious offence and threatening disorder with Muslim protests against offensive publications in the 1920s, the 1927 assembly was clear to differentiate between intentional offence and social reform-minded criticism such as in Htin Lin Oo’s case. Ma Ba Tha’s pressure on the court is either a willful misreading of the law or, arguably, part of a program that is more political than religious. In either case, such groups have been allowed to exert undue influence over the court due to a lack of judicial training or independence.

The most important element of 295(a) is that the accused acted with deliberate and malicious intent however courts in Myanmar have not consistently ruled on this requirement. In cases where the court has sentenced someone to prison after disregarding this fundamental requirement it has acted inconsistently and in violation of domestic law. The resulting imprisonment should therefore be considered arbitrary detention, a violation of international law.

Inconsistencies with International Standards

Equality before the law is a core human rights norm. The Universal Declaration of Human Rights (UDHR), Article 8, guarantees that everyone has the right to effective remedy by a competent tribunal. Articles 10 and 11 stipulate that everyone is entitled to full equality before a fair and public trial by an independent and impartial judiciary and that nobody shall be found guilty for anything that doesn’t constitute a penal offense under national or international law. This is reiterated in Article 15 of the International Covenant on Civil and Political Rights (ICCPR).

The biased rulings on certain 295(a) proceedings are a far cry from the standard of equality and fairness before the law and the courts’ failure to adhere to the intent requirement violates the defendant’s right not to be found guilty for acts that do not constitute a penal offense under national law.

Failure to uphold equality before the law in these proceedings is a violation of the fundamental human right of non-discrimination, which is to be upheld at all times, under all circumstances. Although the UDHR and ICCPR don’t explicitly define discrimination, the Human Rights Committee has held that the Convention on the Elimination of Racial Discrimination (CERD) provides definitional clarity and sets forth guidelines and specific State obligations. Although Myanmar is not a party to CERD, the Convention offers guidance on eliminating discrimination that the new Burmese Government should consider embracing.

CERD explicitly deals with racial discrimination but this can arguably be extended to other forms of discrimination pertinent to section 295(a) and broader Penal Code reform. Article 2 holds that States shall take effective measures to review governmental policies and to amend or repeal laws that allow for discrimination.

Article 4 continues that States shall prohibit organizations that promote or incite discrimination and should not permit public officials or institutions to promote or incite discrimination. The State and courts’ tacit acceptance of Ma Ba Tha and other nationalist Buddhist organizations have contributed to an emboldening and permissive atmosphere for discrimination in favor of Buddhism over other religions. Public officials and institutions are ultimately responsible for the selective implementation of section 295(a), and as such their behavior appears to be in violation of obligations outlined by CERD.

The Human Rights Committee has provided commentary on such implementation in noting that “laws to discriminate in favor of or against one or certain religious or belief systems, or their adherents over another” are impermissible as are laws that “prevent or punish criticism of religious leaders or commentary on religious doctrine or tenets of faith” as long as they do not constitute incitement.

It is clear from the commentary of the 1927 assembly that the commissioners hoped to preserve the freedom of opinion and expression, which the Human Rights Committee has called “the foundation stone for every free and democratic society.” It is so fundamental that international human rights law only permits for limited restrictions, laid out in ICCPR Article 20, namely propaganda for war and advocacy of national, racial, or religious hatred that constitutes incitement to discrimination, hostility, or violence. The object and purpose of section 295(a) appears to conform with international law in this sense, but selective prosecution has amounted to an undue restriction on the freedom of expression.

During the Universal Periodic Review of Myanmar before the Human Rights Council in November 2015, several States including Norway, Turkey, France, and Nigeria made recommendations that Myanmar address the spread of discrimination and incitement against ethnic and religious minorities and enact laws to this effect. Myanmar ultimately rejected most such recommendations claiming they “are contrary to the situation on the ground.” This rejection, however, falls flat in the face of evidence otherwise.

Time for Penal Code Reform

During the follow-up session to the Universal Periodic Review on March 17, 2016, Myanmar’s Representative U Maung Wai remarked that, “as things are changing, and changing in the right direction in the country, a window of opportunity may arise to revisit these recommendations in the future.”

If President U Htin Kyaw is to be taken seriously on his commitment that those who act legally of their own conscience will no longer be imprisoned and if the new Government is sincere in promoting human rights moving forward, it is time for them to see the window of opportunity as wide open. The Office of the High Commissioner for Human Rights, in the same statement mentioned above, has been clear that it is ready to provide expertise to the Burmese Government to reform those laws that do not conform with international standards. Beginning with a review of the Penal Code would be a good start.

This article was originally published on May Day at wagingnonviolence.org here. It was also kindly republished by China Labour Bulletin here.

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As if in anticipation of May Day, one of the largest episodes of labor resistance in decades unfurled in Southern China like a great red carpet of contention throughout the month of April. Beginning on April 5 and seething intermittently for several weeks, tens of thousands of workers demonstrated at the Yue Yuen factory in Dongguan. The Yue Yuen incident should be seen from the perspective of China’s nascent labor movement, as an episode in a steady trajectory of resistance.

Yue Yuen is the largest sports shoe manufacturer in the world, supplying Adidas, Nike, Puma, Crocs, Timberland, and many other brands. The demonstration against the factory came to its first crescendo on April 14 as hundreds of police attacked the workers. The strikers were undaunted and by the following week the number of workers on strike had risen to around 40,000. Students in nearby Guangzhou glued posters outside of Nike stores in solidarity with the striking workers. Meanwhile, according to China Digital Times, government censors issued directives that domestic media delete all content related to the incident.

The workers had taken to the streets in protest of the company’s ongoing failure to pay its 70,000 employees their full social security and housing allowance. Worker grievances also included the thousands of fraudulent contracts they had been forced to sign, which prevented their children from enrolling in free local education, forcing them to pay for specialty migrant worker children schools. These are common grievances among China’s some 250 million migrant workers, who are building lives in the cities rather than returning to the countryside with their wages.

A 2010 survey conducted by China’s National Bureau of Statistics noted 61.6 percent of all migrant workers were born after 1980. This new generation of migrant workers differ from their parents in fundamental ways.

A theme explored in Lixin Fan’s 2009 documentary “Last Train Home,” is the shifting of identity away from the village to the city. Many new generation migrant workers grew up in or were born in cities. This urban identity is associated with more education and skills than their parents, a more independent attitude, and a greater fluency in the Internet and social media. Such differences have arguably influenced the evolution of labor resistance.

Yue Yuen workers were supported by independent labor rights organizations, such as Shenzhen Chunfeng Labor Dispute Service Center. Labor activists from this organization, Zhang Zhiru and Lin Dong, helped coordinate the action through various social media platforms, and urged the workers to remain nonviolent. In response, the police detained Zhang and Lin on 22 April 22. At the time of writing, Lin Dong was still being held in criminal detention. Union representatives, on the other hand, were conspicuously absent during the strike.

“I personally have not seen any union staff, although I heard that they have issued a comment, which no one gives a damn about,” a striking worker told China Labour Bulletin, a Hong Kong rights organization. “They are now giving us instructions, but where the hell were they when the company violated our rights?! I have worked at Yue Yuen for almost two decades, and I don’t even know who our union president is.”

Where is the union?

The largest trade union in the world, the All China Federation of Trade Unions has 239 million members according to 2010 figures. However, the reputation of the ACFTU as the protector of workers’ rights in China has long been suspect due to subordination to elite interests within the ruling Communist Party of China.

When it ratified the International Covenant on Economic, Social and Cultural Rights on March 27, 2001, China made a reservation to Article 8.1(a), which guarantees the right to form and freely join trade unions, stating that its application must be consistent with relevant domestic laws, the typical rhetoric of exemption. Although the Chinese Labor Law encourages collective bargaining on paper it is clear from precedent that the collective bargaining process has most often been shallow and disproportionately favors enterprise, while the freedom of association that is purportedly guaranteed in the Chinese Constitution is often infringed.

China has, furthermore, continually failed to ratify fundamental International Labor Organization conventions, including CO87, the Freedom of Association and Protection of the Right to Organize, and CO98, the Right to Organize and Collective Bargaining.

With a regulation stating that union chairs must be approved by Communist Party officials, it is not uncommon that union representatives are appointed from among factory management or that union officials beat workers back from strikes with truncheons. It is little wonder that the rise in labor resistance is more attributed to horizontal organization within and between factories and supported by independent labor rights organizations rather than through union coordination.

Two episodes that are often accepted as benchmarks in labor resistance, due to the nature of their grievances, sophistication of organization, and relative successes are the 2002 demonstrations by unremunerated workers against the Ferro-Alloy factory bankruptcy and the 2010 strikes at a series of Honda factories over unlivable wages and worker representation.

Resistance at Honda

For weeks in May and June of 2010 workers from several Honda auto parts factories in southern China orchestrated a series of nonviolent demonstrations beginning in Foshan. Most labor disputes in China arise over unpaid or underpaid wages, but the Honda demonstrators demanded large wage increases and a graduated wage scale. According to interviews at the time, as the strike continued, workers “developed higher consciousness of the importance of setting up a democratic union organization in their factory” and included in their demands the right to freely elect representatives.

On the afternoon of May 31, rather than responding to these demands, the local trade union dispatched around 200 officials. Identifiable by matching yellow hats, they attacked a small crowd of gathered workers. Many were beaten. The confrontations escalated but the demonstrators remained firm. They demanded a response from the union and the company and eventually succeeded in gaining limited rights in electing their own representatives and earned a 35 percent wage increase; student interns received an even higher percent wage increase. The successes of the first strike spread to several other Honda factories in June.

Two of the early organizers in the Foshan demonstrations, in their early 20s, had already quit but decided to organize for the benefit of their fellow employees while they waited to be transferred. In Foshan, several workers wrote updates on personal blogs and many of the demonstrators and supporters were active on QQ, a popular Chinese social media platform. At follow up actions, Honda workers uploaded cell phone videos online.

The success of Honda workers has been hailed by labor rights organizations as something of a turning point. Their demands demonstrated increasing awareness of the need for worker representation and that migrant workers are increasingly eager to negotiate their own terms and build sustainable lives in cities.

Ferro Alloy

In early March 2002, after three years of simmering tensions, thousands of employees of the Liaoyang Ferro-Alloy factory in the northeastern province of Liaoning marched on the city government building. They were joined en route by thousands of workers from other factories. Later, the arrest of several Ferro-Alloy worker representatives sparked greater coordination and swelled the numbers to more than 30,000 demonstrators by March 18. Among their main grievances were unpaid housing allotments, pension contributions, social security payments and owed wages. Workers demanded investigation into the misappropriation of funds that they claimed had lead to the company’s bankruptcy and refusal to pay workers.

While also creating petitions and making legal demands, the Ferro-Alloy protests, as noted by UCLA sociologist Ching Kwan Lee in her 2007 book Labor Protests in China’s Rustbelt and Sunbelt, “involved inter-factory coordination and political demands for the removal of city officials.” These tactics set it apart from previous labor protests. Like the Yue Yuen strike, ACFTU representatives were conspicuously absent from the demonstrations in Liaoning and later sided with the state’s hardline stance against workers.

By the middle of March, the government — no longer willing to negotiate — launched a series of counter-strikes. At first attempting to subvert the movement from within through agents provocateur and political spin in domestic media. The state eventually responded with mass arrests. While several of the main organizers, such as Yao Fuxin, were arrested, so were those targeted by worker claims. Yao Fuxin was sentenced to seven years for illegal assembly and subversion, while the former director of the Ferro-Alloy factory was sentenced to 13 years on smuggling charges. Other company and party officials were also sentenced. The central government instituted new provisions that made it more difficult for enterprises to declare bankruptcy without guaranteeing provisions for workers, as the Ferro-Alloy factory had attempted.

Labor looking forward

While such episodes demonstrate that coordination is possible, it is arguable whether China has a labor movement. The sustainability and national coordination of individual episodes of labor resistance is underdeveloped and the Communist Party works tirelessly to constrain national mobilization. The bulk of labor resistance is still often spontaneous, but younger workers are injecting innovative ideas with the guidance of increasingly professional labor activists inside China and abroad. The nascent movement has made strides. As collective identity among workers has increased, so has organizing capabilities; with new support, workers are becoming more proactive and successful.

The international community can continue to support labor resistance in China by expressing solidarity for all nonviolent labor resistance and making consumer or political decisions at home. When the Yue Yuen strike started, Adidas moved a bulk of its orders to other suppliers. In response, solidarity actions were staged at Adidas stores from Hong Kong to Istanbul and New York. Monitoring the situation of labor rights defenders and standing resolute on arbitrary detention, communicating with international organizations and local political representatives have contributed to the international struggle for labor rights and will continue to benefit Chinese workers.

This article was originally published on May Day as ‘Yue Yuen: wildcat strieks and autonomous labor struggles in China’ at ROAR Magazine, reflections on a revolution, as part of a series on labor resistance, available here.

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In China, the Communist Party (CCP) and the All China Federation of Trade Unions (ACFTU) promote and protect workers’ rights. In reality, however, elite interests most often prevail, submerging workers’ rights in the tide of global capitalism. The response has been increasing civil resistance. According to one study, there were 1.171 strikes and labor protests between June 2011 and the end of 2013, and much of April 2014 was marked by one of the largest episodes of resistance in modern Chinese labor history.

On Monday, April 14, 2014, 10.000 workers at the Yue Yuen Dongguan shoe factory took to the streets in protest of the company’s ongoing failure to pay its 70.000 employees their full social security and housing allowance. Worker grievances also included the thousands of fraudulent contracts they had been forced to sign, which prevented their children from enrolling in local schools, forcing them to pay for migrant worker children’s schools. These are common grievances among China’s some 250 million migrant workers.

The strikes, which had been intermittent since April 5, came to their first crescendo that Monday as hundreds of riot police swarmed the crowd. Despite the show of force and minimal arrests, the workers were undaunted, and by the following week the demonstrators numbered around 40.000. Government censors instructed domestic media to delete content related to the incident.

The strike at Yue Yuen, the largest sports shoe manufacturer in the world, supplying Adidas, Nike, Puma, Crocs and others, was supported by labor rights organizations, such as the Shenzhen-based Chunfeng Labor Justice Service Department. Meanwhile, union presence was minuscule. That substantive union support was conspicuously absent in one of the largest labor rights demonstrations in modern China is telling.

China Labour Bulletin, a Hong Kong rights organization, quoted one striking worker: “I personally have not seen any union staff, although I heard that they have issued a comment, which no one gives damn about… They are now giving us instructions, but where the hell were they when the company violated our rights?! I have worked at Yue Yuen for almost two decades, and I don’t even know who our union president is.”

The ACFTU is the largest trade union in the world, with around 239 million members according to 2010 figures. However, the legitimacy of the ACFTU as a representative of workers’ rights has been tarnished by perennial subordination to the interests of the CCP. There is a regulation that party officials must approve all union chairs and the CCP’s position on labor rights is clear.

On March 27, 2001, when it ratified the International Covenant on Economic, Social and Cultural Rights (ICESCR), China issued a reservation to Article 8.1(a), the right to form and freely join trade unions, that its application must be consistent with the Chinese Constitution and other domestic laws. The word union does not appear in the Chinese Constitution. Furthermore, China has continually failed to ratify fundamental International Labor Organization (ILO) conventions CO87, The Freedom of Association and Protection of the Right to Organize and CO98, The Right to Organize and Collective Bargaining.

For these reasons China’s workers have increasingly been relying on autonomous structures of labor resistance organized horizontally within or between small groups of factories with support from independent labor rights organizations and third parties. Students in the nearby city of Guangzhou, for example, left posters outside of Nike stores in solidarity with the striking workers.

After several weeks of demonstrations, a spokesperson for the Ministry of Labor and Social Security acknowledged that Yue Yuen had been underpaying its workers and noted that the department had ordered the factory to comply.

Still, we must not forget that China is increasingly outsourcing cheap labor to countries such as Vietnam and Bangladesh. While victories for individual factories are milestones in the Chinese labor movement, until the engines of global capitalism come to a halt the same exploitive practices will continue in their voracious race to the bottom.

After all, following the initial outbreak of demonstrations at Yue Yuen, Adidas moved a bulk of its orders to other suppliers. This move earned the company criticism from the International Union League for Brand Responsibility, which, as a reminder that the struggle for workers’ rights is universal, responded by organizing solidarity protests at Adidas and Nike stores from Hong Kong to Istanbul and Los Angeles.

The following list of fundamental human rights is taken from Jack Donnelly‘s book International Human Rights, 2007 p. 7.This compilation of fundamental rights is based on the key articles and substance of the three documents that make up what has become known as the International Bill of Human Rights. Namely, these are the Universal Declaration of Human Rights (UDHR), the International Covenant on Civil and Political Rights (ICCPR), and the International Covenant on Economic, Social, and Cultural Rights (ICESCR). While the UDHR is not exclusively a legal document, many law scholars, activists, and practitioners have argued that it has, through practice and general acceptance, entered into customary international law. Meanwhile, the two International Covenants are international legal documents. They were both adopted by the United Nation’s General Assembly on 16 December 1966. The ICESCR achieved enough ratifications and entered into force on 3 January 1976 and the ICCPR on 23 March 1976. Since the ratification of these two treaties a number of additional international human rights instruments that greatly expand on the rights here enumerated have entered into force.

1976 also inaugurated the Human Rights Committee, charged with reviewing state implementation of the ICCPR and hearing complaints and the Committee on Economic, Social and Cultural Rights, charged with the same task for the ICESCR. As noted in an earlier post, a number of states parties to both conventions have either put forth reservations stripping these monitoring bodies of jurisdiction to specific countries or failed to ratify accompanying optional protocols that allow for independent complaint mechanisms. Aside from these monitoring bodies, known as Treaty bodies because their existence is tied to specific human rights treaties, the United Nations Human Rights Council is the principal body charged with monitoring human rights among the 193 member states of the United Nations. The Human Rights Council shall be composed of 47 member countries, chosen with set distribution from certain regions around the world. It has come under significant criticism from a number of sources for bias or hypocrisy. For example, the Philippines is a current member despite censure by the Committee to Protect Journalists that the Philippines is the second most dangerous place for press freedom advocates and journalists after Iraq and the fact that China has served, and is up for election in November.

In light of such contradictions and concerns amid declarations of humanitarian and international human rights conditions as a pretext for the Responsibility to Protect (R2P), for example, a deeper understanding of the specific human rights guaranteed by international law is of paramount necessity. If the international order, composed of states most often acting in pursuit of their own interests, is to be taken seriously, far greater promotion and protection of human rights is needed. For regimes such as the United States in their support of R2P or China in their support for non-interference, both countries eliciting respect for international law, to be taken seriously their own domestic and international records have a convenient litmus by which to measure actual commitment against the rhetoric of political or economic expediency.

Donnelly succinctly outlines the following principle human rights by which we may measure state’s commitment to international law and fundamental human rights (UDHR=D; ICESCR=E; ICCPR=C):

China and the United States met on 30 and 31 July in the capital of Yunnan Province, Kunming, affectionately known as the city of eternal Spring, to hold the 18th US – China Human Rights Dialogue. The US press statement noted, ‘The Human Rights Dialogue provides an important opportunity to elaborate on our concerns about China’s human rights record and to encourage progress, building on engagement on this topic throughout the year.” According to Voice of America, “The U.S. State Department says the U.S. side will bring up the rule of law, freedom of religion, freedom of expression, labor rights, and the rights of ethnic minorities in China…The Chinese foreign ministry says the talks will include ‘candid and in-depth exchanges on the basis of equality and mutual respect in order to promote human rights development in both countries.'” Human Rights Watch has warned, “The US government should press the Chinese government to adopt concrete and clear benchmarks, and evaluate the progress in subsequent dialogues. Without these benchmarks, the human rights dialogue risks serving as a perfunctory diplomatic exercise, rather than a genuinely useful advocacy tool.”

The other day, coincidentally enough in a Yunnan restaurant, a friend made a comment about the United States’ status of ratification compared to China on several key international human rights instruments. International human rights instruments are key documents in international law and the promotion and protection of human rights. They are divided into two categories, declarations (which are not always legally binding) and conventions (which are legally binding under international law. In light of the present US – China human rights dialogue I felt it was relevant to highlight a few of those conventions and explore a little behind exactly how the US and China compare in terms of their respect and implementation of international human rights norms.

According to Global Policy Forum “The US maintains that economic, social and cultural rights are “aspirational,” not inalienable or enforceable.” The Chinese government issued the following statement upon ratification of the treaty, “The application of Article 8.1 (a) of the Covenant to the People’s Republic of China shall be consistent with the relevant provisions of the Constitution of the People’s Republic of China, Trade Union Law of the People’s Republic of China and Labor Law of the People’s Republic of China.” And what is Article 8.1 (a) that China is so concerned with? “The right of everyone to form trade unions and join the trade union of his choice…” An odd reservation for a purportedly Communist nation to be concerned that the right to form unions may stand in conflict with the constitution. This is understood because it would threaten the supremacy of the All China Federation of Trade Unions, a national entity not known for siding with labor when party or elite interests are involved. More can be read about the AFCTU here.

So, what are some of the economic, social and cultural rights that the US feels are merely “aspirational,” rather than inalienable? Article 7 (a)(i) begins, “The States Parties to the present Covenant recognize the right of everyone to the enjoyment of just and favourable conditions of work which ensure, in particular: (a) Remuneration which provides all workers, as a minimum, with: (i) Fair wages and equal remuneration for work of equal value without distinction of any kind, in particular women being guaranteed conditions of work not inferior to those enjoyed by men, with equal pay for equal work…” Article 8.1 (d), “The right to strike, provided that it is exercised in conformity with the laws of the particular country.” Article 9 states, “The States Parties to the present Covenant recognize the right of everyone to social security, including social insurance.” Article 12.1 notes, “The States Parties to the present Covenant recognize the right of everyone to the enjoyment of the highest attainable standard of physical and mental health.”

When ratifying the Covenant the United States made a number of statements clarifying its expectations and responsibilities under the treaty. Here are a few of the statements the United States felt necessary to clarify regarding its implementation of the treaty. “(2) That the United States reserves the right, subject to its Constitutional constraints, to impose capital punishment on any person (other than a pregnant woman) duly convicted under existing or future laws permitting the imposition of capital punishment, including such punishment for crimes committed by persons below eighteen years of age… (5) That the policy and practice of the United States are generally in compliance with and supportive of the Covenant’s provisions regarding treatment of juveniles in the criminal justice system. Nevertheless, the United States reserves the right, in exceptional circumstances, to treat juveniles as adults, notwithstanding paragraphs 2 (b) and 3 of article 10 and paragraph 4 of article 14. The United States further reserves to these provisions with respect to States with respect to individuals who volunteer for military service prior to age 18.” The United States would also be in contravention of Article 6.5, which states, “Sentence of death shall not be imposed for crimes committed by persons below eighteen years of age and shall not be carried out on pregnant women.” We will return to the US position on the rights of children momentarily.

As for China, despite having signed the covenant in 1998 the National People’s Congress (China’s legislative body) has continued to stall the ratification process and many believe it is the conservatives at the center of power who command this resistance. A number of analysts have assumed that China may have only signed the covenant in the late 90s to precipitate its entry into the WTO. Despite the more than a decade long standoff between reformers and hardliners, both from within the party and from the weiquan (rights defense) community, almost every year a revived push for ratification is issued. With the convening of the 2013 National People’s Congress in March, the first headed by new Chinese President Xi Jinping, a group of around 100 intellectuals, activists, and former party members issued an open letter demanding the ratification and implementation of the ICCPR. The BBC reports, “We solemnly and openly propose the following as citizens of China,” the letter begins, “that the International Covenant on Civil and Political Rights (ICCPR) be ratified, in order to further promote and establish the principles of human rights and constitutionalism in China.” The list of names on the open letter includes well known human rights lawyer Pu Zhiqiang (浦志强), investigative reporter Wang Keqin (王克勤), and human rights lawyer and scholar Xu Zhiyong (许志永), who was placed under house arrest in April and formally arrested in July. Until the Chinese Communist Party decides it is in their interest to broaden the scope of political rights the ballet between civil society and conservative factions within the PRC will continue.

What are some of the rights that are so threatening to the CCP, rights that the United States claims to uphold and implement, aside from a few qualifying statements? Article 3 states, “Each State Party to the present Covenant undertakes: (a) To ensure that any person whose rights or freedoms as herein recognized are violated shall have an effective remedy, notwithstanding that the violation has been committed by persons acting in an official capacity…” This would require the drastic overhaul of China’s criminal justice system, which is not known for the independence of lawyers and judges, a particular problem with the vast majority of local rights violations are committed by local officials acting with impunity. Article 8.3(a) reads, “No one shall be required to perform forced or compulsory labour.” China still operates the notorious Reeducation Through Labour system, sentencing to which is an administrative penalty decided by the police without needing a trial and can amount to upwards of four years. Perhaps of equal concern to the United States, in light of its recent War on Terror, and China is Article 9, which reads in whole,

(1) Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law. (2) Anyone who is arrested shall be informed, at the time of arrest, of the reasons for his arrest and shall be promptly informed of any charges against him. (3) Anyone arrested or detained on a criminal charge shall be brought promptly before a judge or other officer authorized by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release. It shall not be the general rule that persons awaiting trial shall be detained in custody, but release may be subject to guarantees to appear for trial, at any other stage of the judicial proceedings, and, should occasion arise, for execution of the judgement. (4) Anyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings before a court, in order that that court may decide without delay on the lawfulness of his detention and order his release if the detention is not lawful.

Article 14.7, the double jeopardy article, reads, “No one shall be liable to be tried or punished again for an offence for which he has already been finally convicted or acquitted in accordance with the law and penal procedure of each country.” The most famous victim of this in recent times in journalist and activist Qi Chonghuai. And then there is Article 17.1, “No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation.” We need only look at the spate of arbitrary arrests and house arrests made against activists in China to understand the government’s hesitance to be bound to such articles. Article 25 reads, a clear no no in a non democratic authoritarian regime, but what about the implications of new voter laws in North Carolina…

Every citizen shall have the right and the opportunity, without any of the distinctions mentioned in article 2 and without unreasonable restrictions: (a) To take part in the conduct of public affairs, directly or through freely chosen representatives; (b) To vote and to be elected at genuine periodic elections which shall be by universal and equal suffrage and shall be held by secret ballot, guaranteeing the free expression of the will of the electors; (c) To have access, on general terms of equality, to public service in his country.

Then there’s Article 27, ” In those States in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practise their own religion, or to use their own language,” which China would have a hard time meeting the minimum standards in the Xinjiang Uyghur Autonomous Region, the Tibetan Autonomous Region, or elsewhere. One might question the degree to which the United States upholds its obligations under this requirement as well. There are many other relevant articles in the ICCPR; these have been presented as an overview.

How is it that the United States is the only country in the world, beside Somalia and South Sudan that has failed to ratify the convention? Global Policy Forum explains the United States’ position as a factor of, “Conservatives who favor the death penalty for minors strongly oppose the treaty.” As noted above in the ICCPR, international law strictly forbids the death penalty for minors. However, the 2005 Supreme Court case of Roper v. Simmons overturned the long standing practice among 25 US states and ruled that it was unconstitutional to impose capital punishment on minors. That the purportedly lingering mentality among hardliners that a minor offender should receive the death penalty is shocking. But, if not for the death penalty, what are some of the reasons behind the United States’ continued failure to ratify the Convention on the Rights of Children?

The United States had been active in the drafting of the convention; the Reagan administration (1981-1989) proposed the original language that is now used in seven of the 54 articles. Madeleine Albright signed the convention on February 16, 1995, representing the US as its ambassador to the United Nations. However, it was either never submitted to congress or congress rejected ratification during the three subsequent presidential administrations. While President Clinton signed the treaty he never submitted it to congress and Obama has indicated that he will submit it to congress, where it must receive 2/3 support before the president can ratify the treaty, but the Obama administration has made no mention of a timeline. A number of conservative groups in the United States have reportedly expressed their reservations claiming either that elements within the convention would contradict the US Constitution, a startling revelation, or that the United States already upholds and protects the standards enumerated within the convention and that therefore its passage would be redundant, a poor excuse. Organizations such as the Heritage Foundation challenge that ratification of the convention would amount to a loss of sovereignty, any amount thereof is inexcusable, they argue. Additional opposition comes from the perspective of parental rights, whose adherents believe that the ratification of the convention would subvert their rights to home school, to hold reservations about the content of public education (in the case of creationism versus evolution for example), or the rights of parents to discipline their children. Many of these and other concerns however are actually ungrounded as the convention does not technically threaten such issues.

Additional concern may come from an analysis of US labor laws. Agricultural labor laws for minors are horribly antiquated in the United States, argues labor rights organizations. According to a 2010 Human Rights Watch report, “Child farmworkers as young as 12 years old often work for hire for 10 or more hours a day, five to seven days a week… Some start working part-time at age 6 or 7. Children, like many adult farmworkers, typically earn far less than minimum wage, and their pay is often further cut because employers underreport hours and force them to spend their own money on tools, gloves, and drinking water that their employers should provide by law.” This appears to contravene, if at least in spirit, Article 32.1 of the convention, which reads, “States Parties recognize the right of the child to be protected from economic exploitation and from performing any work that is likely to be hazardous or to interfere with the child’s education, or to be harmful to the child’s health or physical, mental, spiritual, moral or social development.” Article 32.2 (a) continues that the state parties shall in particular, “(a) Provide for a minimum age or minimum ages for admission to employment; (b) Provide for appropriate regulation of the hours and conditions of employment; (c) Provide for appropriate penalties or other sanctions to ensure the effective enforcement of the present article.” The resistance to ratification is not voiced in relation to the need to address an exploitative child labor industry but in the more ‘American value’ discourse of personal rights and sovereignty. This appears to indicate a further explanation for the failure of the United States to ratify the convention.

Many of the reservations common to the opposition are simply, I would argue, the vocalized animus held toward the United Nations system in general by a group of conservative members of the US population and congress. In any case, as has already been highlighted, the ratifying country can make qualifying statements or reservations at the time of ratification. Such specific complaints and perceptions against the convention are more accurately explained as uninformed and the masking of intransigence.

China, upon ratification issued the following reservation, “The People’s Republic of China shall fulfil its obligations provided by article 6 of the Convention under the prerequisite that the Convention accords with the provisions of article 25 concerning family planning of the Constitution of the People’s Republic of China and in conformity with the provisions of article 2 of the Law of Minor Children of the People’s Republic of China.” Article 6 of the convention reads, “1. States Parties recognize that every child has the inherent right to life. 2. States Parties shall ensure to the maximum extent possible the survival and development of the child.” Article 25 of the Chinese Constitution states that, “The state promotes family planning so that population growth may fit the plans for economic and social development.” This is not to say that China’s only blotch on the rights of Children is its draconian One Child Policy, which is certainly a sizable blotch, but it is a strong indicator of the degree to which a State, even once it has ratified a convention, may act in contravention. A more timely example is provided by a recent report published by Human Rights Watch, which claims, “Children with disabilities face significant hurdles in accessing education in China, and a substantial number of them receive no education at all.” This would contravene Article 1 of the convention, which reads, “States Parties shall respect and ensure the rights set forth in the present Convention to each child within their jurisdiction without discrimination of any kind, irrespective of the child’s or his or her parent’s or legal guardian’s race, colour, sex, language, religion, political or other opinion, national, ethnic or social origin, property, disability, birth or other status.” This would also be tested when applied to the access or denial of education among Uyghur, Tibetan, or Mongolian children, or the children of known human rights defenders, who are often persecuted along with their parents and denied education.

A note on disabilities, China has both signed (30 March 2007) and ratified (1 August 2008 ) the Convention on the Rights of Persons with Disabilities. The United States has signed (30 July 2009) but, along with 37 other UN member states, failed to ratify the convention. The United States Senate voted whether to ratify the Convention on the Rights of Persons with Disabilities on 4 December 2012 but failed to get enough votes, The Huffington Post reports. To achieve the two thirds majority support to ratify the bill the roll call needed 66 yes votes but received only 61; 38 voted against ratification.

President Jimmy Carter signed the convention in 1980 but the United States has failed to ratify the convention. Three presidential administrations have attempted to bring the convention before Congress for ratification but have been defeated. The late Jesse Helms, republican senator from North Carolina and chairman of the Senate Foreign Relations Committee, was a long time opponent of US ratification on both CEDAW and CRC. Several powerful conservative organizations, many with claimed religious underpinnings, continue to lobby against ratification of international human rights treaties. Concerned Women for America (CWA), whose stated goal is to bring biblical principles into all levels of public policy, stated of the convention, “This so-called ‘women’s rights’ treaty was crafted by extreme feminists in the 1970s. More accurately, it is anti-woman and contradicts our Constitution.” CWA lists among its principle complaints against CEDAW the fact that it would, “negate family law and undermine traditional family values by redefining the family; force the U.S. to pay men and women the same for “work of equal value” thus going against our free-market system; ensure access to abortion services and contraception; allow same-sex marriage; and undermine the sovereignty of the U.S.” Associate Professor of Government at Dartmouth College, Lisa Baldez, an expert on the US and CEDAW writes in an op-ed for CNN that critics of CEDAW, “say it doesn’t reflect American values enough. Here’s what they are missing: The treaty takes American values of equality and women’s rights and makes them global norms.” She continues,

Opponents have a point when they note that ratifying this document has not prevented some countries from being the most egregious violators of women’s rights. When the most powerful country in the world does not support women’s rights, it gives permission for other countries to dismiss their commitment to improving the status of women. With the United States behind it, CEDAW would have even more clout than it does.

It would appear that religious principles, social conservatism, and enforced gender inequality are the principle drivers behind US congress continued failure to ratify the convention. That China has ratified the convention is no sign of its robust implementation.

China issued a reservation at the time of ratifying the convention that excludes it from recognizing the jurisdiction of an international body to investigate or mediate disputes relevant to the convention. China has proven itself as stubborn to recognize the jurisdiction of complaint mechanisms for international treaties as the United States but many women’s organizations and other human rights groups have reported serious shortcomings in China’s implementation of sexual and gender based rights and the rights of women. Many have accused the All China Women’s Federation of brutally enforcing china’s draconian one child policy, at the clear detriment of the rights of women. Furthermore, the linguistic and cultural signification of women will remain with characters like 嫁 jia (to marry / to marry off a daughter / blame etc), a combination of the characters 女 nv (woman) and 家 jia (home), it is a linguistic component of selective infanticide of female children believing them to be inferior because they will eventually leave for the family and village of the husband. China is the only country in the world with a higher suicide rate for women than for men reports the World Health Organization. The number of high level female politicians or the diminutive and misogynistic discourse used to talk about women representatives to the National People’s Congress further provides clarity on the actual social situation. Women have a far way to go before the ratification of the convention in China provides anything close to Mao’s famous adage that ‘Women hold up half the sky.’

Despite having both ratified the CAT China and the United States have been the documented perpetrators of acts of torture, both domestically and (more so in the case of the United States) in outside countries. The United Nations Committee Against Torture and the office of the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment is tasked with monitoring and reporting on reports and complaints of torture around the world. The current Special Rapporteur on Torture is Argentinian jurist Juan Méndez. Previous Special Rapporteur (2004-2010) Manfred Nowak noted in 2008, regarding China, “that the definition of torture and the criminalization of torture in Chinese law still do not satisfy the requirements of articles 1 and 4 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT). He also reiterates his concerns about Re-education-through-labour (RTL) camps and urges the Government to abolish the doctrine of RTL.” China’s record of torturing political prisoners is well documented by many independent human rights organizations as well as governments. Manfred Nowak also requested visitation with Bradley Manning to investigate accusations of torture. Although I recall Nowak having made a statement that the conditions of Manning’s confinement amounted to torture, I cannot find the link at this time. Juan Méndez has requested several unrestricted visits with Bradley Manning but the Obama administration has consistently denied this visitation. The litany of accusations against both governments concerning torture is of course extensive. One need only remember Abu Ghraib.

Upon ratifying CAT the Chinese reservation stated that, “The Chinese Government does not recognize the competence of the Committee against Torture as provided for in article 20 of the Convention.” The United States issued a lengthy series of reservations, available here. A number of these reservation demonstrate the United States and China’s stated objective to claim legitimacy in its promotion of domestic human rights through the symbolic act of ratification but strips the convention of its jurisdiction to investigate either country in response to claims of abuse by civil society or independent third parties. This is further supported by the fact that while both countries have ratified CAT, neither country has signed the Optional Protocol to the Convention against Torture (OCAT), which establishes a subcommittee on the Prevention of Torture (SPT) with the

[U]nrestricted access to all places of detention, their installations and facilities and to all relevant information. The SPT visits police stations, prisons (military and civilian), detention centres (e.g. pre-trial detention centres, immigration detention centres, juvenile justice establishments, etc.), mental health and social care institutions and any other places where people are or may be deprived of their liberty.

The SPT must also be granted access to have private interviews with the persons deprived of their liberty, without witnesses, and to any other person who in the SPT’s view may supply relevant information including Government officials, NPMs, representatives of national human rights institutions, non-governmental organizations, custodial staff, lawyers, doctors, etc. People who provide information to the SPT shall not be subject to sanctions or reprisals for having provided information to the SPT.

Both China and the United States prove with this resistance that narrow and politically motivated notions of sovereignty are more expedient than the actual protection against or prosecution of acts of torture. This political will is damning to the morality of either country and particularly more so to the United States which claims to be promoter and enforcer of human rights standards but this is a tired line of argument. Hiding behind a curtain of protecting sovereign interests is a transparent ploy to shield agents of the state from prosecution for acts explicitly condemned under the convention, to which both countries are bound by international law. This is the same misplaced nationalism and arrogance to an international system that explains the position of the United States and China on the Rome Statute, which created the International Criminal Court.

First adopted at a conference in Rome on 17 July 1998, the Rome Statute entered into force on 1 July 2002. The primary purpose of the Rome Statute is to enumerate the jurisdiction, structure, and function of the International Criminal Court. Human Rights Watch notes, “The court was created to bring justice to the victims of gross human rights violations,” which are acts of genocide, crimes against humanity, war crimes and the crime of aggression. The ICC is given jurisdiction to act in cases of abuse of these four crimes in situations when either the host country is unable or unwilling to investigate or prosecute. A major US opposition point to ratifying the Rome Statute is that it would put the US under the jurisdiction of the ICC and allow the court to investigate and open prosecution of US citizens, potentially for actions committed on US territory. One might be more concerned about why this should even be a concern, if the US is innocent of these four crimes then no concern over sovereignty would matter, as it would never come to a point of being tested. A second line of argument that is often used is that the US already upholds such principles and prosecutes such crimes on its own and therefore its ratification to any such treaty would be redundant; however, this neglects to take into consideration the symbolic gesture of the US position on other countries.

The conservative Heritage Foundation again pops up at the forefront of American opposition to international human rights instruments. The Heritage Foundation website states, “The crimes under the jurisdiction of the ICC are broadly defined and could subject individuals to penalties of up to life imprisonment for actions that never were thought punishable on the international level before.” This is an interesting statement considering the crimes (which again are genocide, crimes against humanity, war crimes and the crime of aggression) are fairly clearly enumerated (here) and to dare to claim that they are crimes that have never been thought punishable on the international level before is just false. The Heritage Foundation continues with the following specific concerns, “(1) The ICC threatens American self-government; (2) The ICC is fundamentally inconsistent with American tradition and law; (3) The ICC violates constitutional principles; (4) The ICC contradicts the founding principles of the American Republic; (5) The ICC threatens America’s ability to defend its interests through military action.” Let me repeat the fifth point, The Heritage Foundation finds fault with the ICC because it would make it possible to prosecute any “individual American, including the President, military and civilian officers and officials, enlisted personal, and even ordinary citizens” who commit acts of genocide, crimes against humanity, war crimes and / or the crime of aggression.

One might be skeptical of an organization that implicitly advocates for the impunity of individuals guilty of such actions on the sole ground that they are members of the same political nation. One could argue that if the United States is concerned with its soldiers being subjected to ‘political or frivolous’ charges of war crimes et al then it should reexamine its track record to understand why it would be primus inter pares among the advanced military forces of the world to face such accusations. To make a significant stand to prove that the United States does not engage in such activities, and demonstrate its total support of the morality of its actions, it would join with the other advanced military countries and advanced democracies and accept the legitimacy and jurisdiction of the Court to investigate and try such heinous crimes.

The majority of opposition to the Rome Statute and the ICC, from both the Heritage Foundation and others, is based on the issue of jurisdiction and sovereignty more than an actual disagreement on the morality of the crimes therein enumerated but by clinging so vehemently and obstinately to nationalistic principles the opposition is open to a number of accusations of supporting double standards and a dangerous selective moral ontology. Furthermore, it sets an international precedent and, through direct diplomatic encouragement, it promulgates these double standards and certification of exclusionary and nationalistic moral codes.

Writing on China and the ICC, Joel Wuthnow a China analyst with CNA and author of Chinese Diplomacy and the UN Security Councilwrites in an article for the Diplomat,

What is sometimes missing from these discussions is the reality that key states may have principled or practical reasons to oppose ICC intervention. Although this applies to Russia and the United States, China is a particular concern for several reasons: its historical reservations about international interference in states’ internal affairs; its close economic and political ties with some states targeted by the Council for possible ICC involvement, such as Sudan, Libya under Gaddafi and Syria; the power to veto ICC referrals it holds as a permanent member of the Security Council; and the general tone of assertiveness that has colored China’s foreign policy in the last few years.

While China’s failure to ratify the ICC might have a lot to do with countering such potential problems regarding alliances down the line it is more likely that it is just part of the quite consistent message of non-intervention and the sanctity of sovereignty. It is in line with China’s intransigence to optional protocols, even of treaties it has ratifies, that permit independent investigations or provide for a complaint mechanism for civil society actors to report situations of gross abuse. Both the governments of the United States and China are vehement on these terms.

The United States and China command a tremendous percentage of the worlds attention. Despite a significant drop off since the declared endless ‘war on terror’ the United States continues to preside over vast troves of symbolic capital and soft power the world over and China skillfully positions itself in alliance with a number of the worlds unsavory regimes (North Korea, Sudan) while extending large sums of purportedly no strings attached aid to developing countries. Both nations are arguably responsible for shaping a great degree of international opinion and norms. Not only their own domestic records on implementing human rights legislation but the way they interact with the international community has an impact on shaping the development of other nation’s domestic policies and their relationships with the international community, namely the Human Rights community. For this reason, what takes place at the US – China Human Rights Dialogue is of incredible importance but in light of the two nations developments regarding the foundational documents of international human rights, we shouldn’t expect too much to come from Kunming.